Humble v. Boeing Co., 01-35107.

Citation305 F.3d 1004
Decision Date18 September 2002
Docket NumberNo. 01-35107.,01-35107.
PartiesSu HUMBLE, Plaintiff-Appellant, v. BOEING COMPANY, a Delaware corporation, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Fay Freedman, Seattle, Washington, for the appellant.

Russell L. Perisho, Perkins Coie, Seattle, Washington, for the appellee.

Clifford Freed, Frank Rosen Freed Roberts, Seattle, Washington, for amicus curiae Washington Employment Lawyers' Association.

Dmitri Iglitzin, Schwerin Campbell Barnard, LLP, Seattle, Washington, for amicus curiae International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 751.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV-00-01476-BJR.

Before: REAVLEY,* TASHIMA, and RAWLINSON, Circuit Judges.

REAVLEY, Circuit Judge.

Plaintiff-Appellant Su Humble appeals the district court's dismissal of her Washington state law claims on the grounds that they were preempted by § 301 of the Labor Management Relations Act (LMRA), and that the six month statute of limitations for filing an action under the LMRA had expired. Because we find that Humble's state law reasonable accommodation claim is not preempted, we reverse.

I. Background

Su Humble is a Korean woman who was employed as a fabrication bench mechanic at Boeing in February 1999 when she suffered an on-the-job injury to her shoulder. According to Humble's pleadings, Boeing's medical department recommended that she be given a light duty position, but her supervisor disregarded this recommendation and returned her to her original position. Her injury was allegedly exacerbated, resulting in a cycle over the course of more than a year of medical leaves followed by reinstatement to her original position, or short-term reassignment to modified work followed by return to her original position. Finally, when Humble returned from one of her multiple medical leaves on May 24, 2000, she was told that there were no light duty positions available to accommodate her. She has been offered no other work by Boeing since.

Humble brought suit in state court, alleging that Boeing's conduct violated the ADA, Title VII(because Boeing allegedly is more accommodating of white workers), Washington's Law Against Discrimination (WLAD), portions of which cover race, nationality, and disability discrimination, and state law torts of intentional and negligent infliction of emotional distress. Boeing properly removed the case to federal court on the grounds that the ADA and Title VII present federal questions. Humble then amended her complaint to delete the federal claims and moved for a remand of her remaining state law claims. The district court denied the motion for remand on the ground that the claims contained in Humble's pleadings were dependent on the terms of the parties' collective bargaining agreement (CBA), and so were preempted by § 301 of the LMRA.1

Boeing then filed a motion for summary judgment solely on the grounds that Humble had failed to amend her complaint to seek relief under the LMRA, and that the six-month statute of limitations for a claim under the LMRA had expired. The district court granted summary judgment in favor of Boeing on the statute of limitations issue and dismissed the case. No discovery was ever taken, and the merits of Humble's claims were not at issue.

II. Analysis

Section 301 of the LMRA provides that all suits seeking relief for violation of a CBA may be brought in federal court. The Supreme Court has held in a variety of contexts that § 301 acts to preempt state law claims that substantially depend on the CBA,2 that are premised on negotiable or waivable state law duties the content of which has been covered by the CBA,3 or that seek to enforce the terms of the CBA, for example, breach of contract claims.4 Section 301 preemption has been applied to generate and protect a body of consistent federal law interpreting CBA provisions,5 and to prevent plaintiffs from using state law litigation to side-step or alter the balance of the negotiated provisions of a CBA and the arbitration provisions contained therein.6 However, the Supreme Court has repeatedly admonished that § 301 preemption is not designed to trump substantive and mandatory state law regulation of the employee-employer relationship;7 § 301 has not become a "mighty oak" that might supply cover to employers from all substantive aspects of state law.8

This circuit's recent en banc decision, Cramer v. Consolidated Freightways Inc.,9 revised our framework for analyzing § 301 preemption and synthesized the considerations involved. As explained in Cramer, the plaintiff's claim is the touchstone for the preemption analysis, and "the need to interpret the CBA must inhere in the nature of the plaintiff's claim" to trigger preemption.10 To balance properly the policy considerations discussed above, defensive reliance on the terms of the CBA, mere consultation of the CBA's terms, or a speculative reliance on the CBA will not suffice to preempt a state law claim.11

Whether § 301 of the LMRA preempts Humble's claims is an issue of law, which we review de novo.12

A. Reasonable Accommodation Claim

Humble's reasonable accommodation claim under the WLAD is not preempted by § 301. In reaching this determination, we first outline the components of a reasonable accommodation claim under Washington law. The WLAD provides that it is an unfair employment practice to discriminate against employees in the terms or conditions of employment on the basis of a physical disability (among other things).13 The implementing regulations provide in more detail that it is an unfair employment practice to "fail or refuse to make reasonable accommodation for an able worker with a disability ... unless to do so would impose an undue hardship."14

(1) Reasonable accommodation means measures that:

(a) Enable equal opportunity in the job process;

(b) Enable the proper performance of the particular job held or desired;

(c) Enable the enjoyment of equal benefits, privileges, or terms and conditions of employment.

(2) Possible examples of reasonable accommodations may include, but are not limited to:

(a) Adjustments in job duties, work schedules, or scope of work;

(b) Changes in the job setting or conditions or work;

(c) Informing the employee of vacant positions and considering the employee for those positions for which the employee is qualified.15

Washington law does not require, however, that an employer modify the essential functions of a job or place the disabled employee in a position for which he or she is not eligible.16

We must next determine exactly what sort of preemption argument Boeing has made to support the argument that the reasonable accommodation claim is preempted. The Supreme Court has recognized that:

while our cases tend to speak broadly in terms of § 301 `pre-emption,' defendants invoke that provision in diverse situations and for different reasons: sometimes their assertion is that a plaintiff's cause of action itself derives from the [CBA] (and, by that agreement, belongs before an arbitrator); in other instances the argument is different, that a plaintiff's claim cannot be `resolved' absent [CBA] interpretation, i.e., that a term of the agreement may or does confer a defense on the employer ...; and in other cases still, concededly `independent' state-law litigation may nonetheless entail some [CBA] application.17

Boeing has made all of these arguments, though not clearly separated from each other, to show preemption of Humble's reasonable accommodation claim. We consider each in turn.

(1.) Derived from the CBA

Boeing argues that section 15.2 of the CBA preempts Humble's reasonable accommodation claim. That provision states, "where an employee returns from a leave of absence ... and he is medically not able to perform the job which he last held, he will be considered for any job that he is qualified and able to perform, or (if a surplus occurred that would have affected him during such leave) be subjected to surplusing procedures, all in accordance with Article 22."18 Boeing argues that this provision directly "covers" the subject matter of the dispute at issue in this case, and so preempts Humble's state law claims. We disagree.

Section 301 preemption is not intended to shield an employer from substantive duties that the state might impose.19 As the Supreme Court explained in Lingle,20 just because a CBA provides a remedy or duty related to a situation that is also directly regulated by non-negotiable state law does not mean the employee is limited to a claim based on the CBA.21 In Lingle, an employee who had been terminated sued her employer under state law for worker's compensation retaliation.22 Despite the existence of a termination for "just cause" provision in the CBA under which Lingle might have brought a grievance, she remained free to enforce her separate, non-negotiable state law right not to be retaliated against for filing a worker's compensation claim.23

Similarly, Humble need not rely on section 15.2 of her CBA to enforce the "parallel," independent, and more extensive reasonable accommodation duties established by the WLAD. There is no dispute that the duty to reasonably accommodate workers is non-negotiable under Washington law.24 Although Humble could have decided to pursue a grievance and arbitration based on section 15.2, she has expressly eschewed any reliance on that provision, instead basing her claims on the statutory duty of reasonable accommodation established by the WLAD.

(2.) Reliance on or Intertwinement with the Terms of the CBA

Boeing has argued more persuasively, however, that the reasonable accommodation claim is preempted because Article 22 of the CBA, which provides an intricate scheme of seniority, must necessarily be interpreted...

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